Copyright (c) 1997 New York University Law Review
New York University Law Review
April, 1997
2 N.Y.U.L. Rev. 54

Christopher L. Eisgruber *

* Professor of Law, New York University. B.A., 1983, Princeton
University; M.Litt., 1987, Oxford University; J.D., 1988, University of
Chicago. For helpful conversations and comments in connection with this
Article, I am grateful to Jill Fisch, Marty Flaherty, Jim Fleming, Jeff
Gordon, Abner Greene, Paul Heald, Lewis Kornhauser, Nancy Morawetz, Liam
Murphy, Richard Nagareda, Gerry Neuman, Larry Sager, Liz Shofner, and
participants in the New York University Colloquium on Constitutional
Theory and the Columbia Law School Legal Theory Workshop. I am
especially grateful to Peter Schuck and Rogers Smith, who, despite their
disagreement with my thesis, provided extensive and generous comments.
Finally, I am grateful to Christine Fecko and Rose Greenberg, who
provided excellent research assistance, and to the Filomen D'Agostino
and Max E. Greenberg Faculty Research Fund at the New York University
School of Law, which provided generous financial support for this
research.

The United States Constitution's citizenship rule, which grants
citizenship to, among others, the American-born children of illegal
aliens, has come under attack. Professor Eisgruber defends the
Constitution's birthplace rule against calls for its amendment and
against arguments in favor of a parentage rule. He proposes the
Responsiveness Principle as a competitor to a consent or reliance theory
to provide the normative justification for a rule of citizenship. Under
this principle, a government should be responsive to the interests of
all those over whom it exerts general jurisdiction. Professor Eisgruber
argues that the current birthplace rule is the best way to implement the
Responsiveness Principle because it makes it likely that those subject
to the laws will have an effective voice in determining their content.
He also cautions that an amendment modifying the birthplace rule would
likely affect the interpretation of other constitutional provisions by
compromising the Constitution's commitment to political justice.

The United States Constitution guarantees citizenship to almost every
child born in the United States. n1 Apart from an exception for children
born to foreign diplomats, n2 the Constitution's birthplace principle
applies without regard to the ethnicity or legal status of a child's
parents - so, for example, children born in the United States to illegal
aliens are American citizens. This is an arresting rule. Until recently
it has also been remarkably little known. Many lawyers (and some law
professors) are surprised to learn that the Constitution confers
citizenship upon the American-born children of illegal aliens. With few
exceptions, n3 the vast literature on constitutional theory has largely
ignored the principle. n4

Recently, however, politicians have discovered the Fourteenth
Amendment's Citizenship Clause and have attacked it. A House of
Representatives subcommittee has held hearings on an amendment that
would deny citizenship to the American-born children of illegal aliens.
n5 A similar proposal was temporarily included as a plank in the
Republican Party's 1996 presidential platform, n6 and anti-immigration
groups mounted a substantial (albeit unsuccessful) campaign in
California on behalf of an advisory referendum endorsing such an
amendment. n7 Earlier, during the summer of 1993, California Governor
Pete Wilson proposed a similar amendment. n8

The purpose of this Article is to investigate the theoretical
foundations of the Constitution's treatment of birthright citizenship. I
will seek to answer two questions. First, what rule ought to govern
birthright citizenship in the United States? I will defend the
Fourteenth Amendment's birthplace rule. Second, what consequences would
follow if the Constitution were to depart from the birthplace rule for
determining citizenship? I will argue that it would, in theory, be
possible to quarantine the effects of an undesirable amendment, but that
such quarantines are, in practice, fragile.

Trying to analyze birthright citizenship can be like trying to grab a
fog bank: the target appears solid enough but dissolves as one reaches
to grasp it. To begin with, it is far from easy to define the package of
rights and responsibilities at issue when we speak of
"citizenship" or even "democratic citizenship." A
crucial minimum is the right to stay within the polity if one wishes;
aliens can be deported, but citizens, if they can be expelled at all,
must be exiled, which is likely to be a more difficult procedure for the
nation to undertake. n9 But one cannot make the definition much more
precise without invoking contested political principles. So, for
example, one might suppose that citizenship entails the right to vote. A
series of constitutional amendments has given effect to this judgment,
thus narrowing the gap between the set of citizens and the set of
voters. n10 Over the course of American history, however, citizens have
been denied the vote in a wide variety of ways - by racial and sexual
qualifications, poll taxes, literacy tests, and property qualifications
n11 - and even today some citizens (e.g., convicted felons) lack the
right to vote. n12 Nor is there anything in the Constitution that
precludes the states from granting the franchise to noncitizens, and
states have done so. n13 Likewise, military service might seem to be the
special responsibility of citizens, but, in fact, the United States has
conscripted resident aliens to serve on its behalf in wartime. n14

We might be tempted to include equal access to political office among
the privileges of citizenship, but, of course, the Constitution itself
bars naturalized citizens from becoming President. n15 Obviously, the
matter only becomes murkier when we consider grander rights, like the
ones Bushrod Washington mentioned in his famous Corfield v. Coryell n16
opinion. On the one hand, citizenship might not carry with it all (or,
indeed, any) of the benefits Washington described. On the other hand, if
citizens do have a right to those benefits, they might have them by
virtue of their status as residents or human beings, rather than by
virtue of their citizenship. If that were so, resident aliens would
share these rights despite their lack of citizenship. It is thus
entirely possible that laws like California's Proposition 187, which
denies welfare services, nonemergency medical treatment, and public
schooling to foreigners illegally residing in the state, are
unconstitutional even if the United States remains entirely free to
deport those whom it may not otherwise disadvantage. n17

One might readily believe that the important questions are best
expressed without reference to citizenship: Who has the right to enter,
remain in, and leave a polity? Who bears responsibility for defending a
polity in times of military crisis? Who may (or must) vote? Who has the
responsibility to pay taxes? Who may own land in the polity? Who may
share its educational, health care, and welfare benefits? Bundling two
or more of these questions together under the label
"citizenship" risks confusion, and it is not obvious what we
gain from the concept. n18

We are thus confronted with an issue where conceptual precision is
both elusive and essential. In the argument that follows, I will assume
the following, rather minimal, definition of citizenship: a resident of
a polity is a citizen if and only if the resident is not subject to
deportation and is entitled to vote after reaching adulthood. Neither
the dictionary nor American history compels us to accept this connection
between citizenship and the franchise. Nevertheless, it seems clear
enough that in the United States today citizens are presumptively
entitled to vote and noncitizens cannot vote. When we ask what rule
ought to govern birthright citizenship in the United States, we are
asking (at a minimum) about who may stay and who may vote.

It is tempting to think that a rule which (like the Fourteenth
Amendment) makes birthright citizenship contingent upon the place of a
child's birth is somehow more egalitarian than a rule that would make
birthright citizenship contingent upon the legal status of the child's
parents. The latter approach might seem predicated upon an arbitrary
bias against foreigners and their descendants. n19 But the idea that
birthplace is an especially egalitarian criterion for determining
citizenship can easily lead us astray. Birthplace has its own
arbitrariness: why should the law deny citizenship to an infant carried
across the Rio Grande at the age of one month (or one day) while
granting it to a child born only days after her mother entered the
United States? Indeed, why should a child's access to the benefits of
membership in the community turn upon whether or not her mother happened
to cross into Texas at all rather than staying in Juarez (and, of
course, for these purposes Juarez is no different than Guadalajara or,
for that matter, Beijing)? Geographical borders are inevitably products
of historical accident; any selective principle of birthright
citizenship will reflect that arbitrariness.

Nor does it help much to transfer our focus from individual equality
rights to democratic structure by claiming, for example, that birthplace
citizenship is essential in order to avoid the creation of an enduring
caste of second-class persons within our society. If the point of this
claim is merely that illegal aliens, unlike foreigners, live in our
midst, then we must ask why we should care more about people simply
because they live in our country. Why isn't it equally problematic that
we effectively create a second-class caste (by comparison to Americans)
in other countries by closing our borders to them? n20 Indeed, illegal
aliens and their children may well be better off in the United States,
even without citizenship, than they would have been had they never
entered the country. If, on the other hand, somebody maintains that the
children of illegal aliens do not merely reside in our midst but instead
belong to our society in some deeper sense, then the argument risks
begging the crucial question. Our search for a rule of birthright
citizenship is an effort to specify who is entitled to membership in our
society, and one cannot conduct the search by assuming an answer.

Moreover, a constitutional rule about birthright citizenship can
coexist with a variety of attitudes toward immigration and aliens. A
nation might embrace the birthplace rule but strictly patrol its borders
to keep foreigners from entering. Indeed, the birthplace rule
effectively forces a nation to implement its decisions about membership
"up front" by controlling the flow of aliens into the country,
since, once the aliens are present, the nation will be powerless to
exclude their American-born children. Conversely, a nation might make
birthright citizenship contingent upon parental citizenship but
nevertheless open its borders by inviting foreign adults to become
permanent residents or naturalized citizens. Xenophobic politicians are
not the only people who have taken issue with the birthplace rule; its
critics include others - such as Professors Peter Schuck and Rogers
Smith of Yale University - whose overall approach to immigration policy
is liberal. n21 If hospitality and fairness toward aliens were the
benchmarks against which we should judge principles of birthright
citizenship, then the birthplace rule would by no means be a clear
winner.

Nevertheless, as we shall see, there is much to be said for the
intuition that the Fourteenth Amendment's birthplace rule serves our
constitutional commitments to equality and democracy. Making sense of
that intuition will, however, require considerable work.

The most important discussion of American citizenship prior to
Reconstruction and the Fourteenth Amendment occurred in Scott v.
Sandford. n22 Chief Justice Taney, apparently writing for the Court, n23
concluded that the Constitution precluded both Congress and the states
from conferring citizenship upon native-born descendants of slaves.
Taney did not say whether Congress or the states had any discretion to
determine the citizenship of native-born white persons. n24 The Chief
Justice relied on originalist arguments about framers' intent to justify
his position. n25

Justice Curtis, dissenting, said that the citizenship of native-born
Americans was entirely a matter of state law, unrestricted by the
national Constitution. Curtis derived his rule by arguing that state
sovereignty presupposed the authority to decide which of its residents
was a citizen; he thought it obvious that the Constitution had not
specified any rule that might supersede the authority of the states in
this sphere. n26 Justice McLean, the other dissenter, anticipated the
rule eventually incorporated into the Fourteenth Amendment, saying that
any native-born free person was an American citizen. n27 McLean gave no
reasons for his conclusion.

Commentators have generally favored Curtis's interpretation of
antebellum law. n28 The doctrinal record, however, is remarkably thin.
Although both state and federal law made frequent references to
citizenship, neither the states nor the federal government devoted much
effort to defining who qualified for citizenship. n29 Whether or not the
states had authority to substitute a different rule, they appear to have
assumed the existence of a rule like the one eventually
constitutionalized by the Fourteenth Amendment: all free, native-born
persons subject to the jurisdiction of American law were citizens of the
United States and of the state in which they resided. n30 The most
striking applications of this rule came from Southern state courts that
occasionally invoked it to affirm the citizenship of free blacks. n31

Matters began to change in the second quarter of the nineteenth
century as Northern and Southern positions about slavery hardened.
Southern courts abandoned doctrines that had once allowed free blacks to
become citizens. n32 Chief Justice Taney's doctrine in Scott extended
and assisted the exclusionary thrust of pro-slavery state court
decisions.

If indeed Justice Curtis was right about the antebellum law of
American citizenship, the states had wide discretion to deny citizenship
to their native-born inhabitants, white or black. It is then quite
striking that this discretion apparently went unused. The doctrines
directed at free blacks in the South were singular exceptions. In
general, Justice McLean's principle - namely, that all free native-born
persons were citizens - seems to have captured the spirit of American
law, and that principle was powerful enough to govern even some Southern
courts dealing with free blacks.

The Citizenship Clause of the Fourteenth Amendment provides,
"All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside." The Clause poses one interpretive
puzzle about the qualifications for citizenship: what is the meaning of
the Clause's jurisdictional proviso, which limits citizenship to persons
who are "subject to the jurisdiction" of the United States? As
Professors Schuck and Smith observe, "Without that phrase, the
clause would appear to demand a universal application, for it speaks of
all persons, not some, and it employs a geographical referent (birth
"in the United States') rather than a legal one." n33

Who is "born ... in the United States" without being
"subject to the jurisdiction thereof"? Indians might fit that
description; some understandings of tribal sovereignty would suggest
that Indians born on reservations live under the jurisdiction of tribal
laws, even though they also live within the borders of the United
States. The Supreme Court addressed this possibility in Elk v. Wilkins,
n34 decided in 1884. Elk involved an Indian plaintiff who sought to
claim American citizenship after leaving his tribe. The Supreme Court
ruled against the plaintiff, holding that he had not been born under the
jurisdiction of the laws of the United States. Justice Harlan dissented,
castigating the Court for creating a despised and rejected class of
persons, with no nationality whatever; who, born in our territory, owing
no allegiance to any foreign power, and subject, as residents of the
States, to all the burdens of government, are yet not members of any
political community nor entitled to any of the rights, privileges, or
immunities of citizens of the United States. n35

Harlan's protest has never received judicial vindication; the Court
has not overruled Elk. Congress has, however, provided statutory rights
to Indians seeking citizenship. A person born in the United States to a
member of an Indian tribe is now entitled to American citizenship. n36
We are thus unlikely to find out whether Elk would withstand review by a
modern Court.

On other points, the jurisdictional proviso's meaning is more clear.
The Supreme Court ruled in 1898 that the Fourteenth Amendment conferred
citizenship upon the American-born children of aliens resident in the
United States. The case, United States v. Wong Kim Ark, n37 involved
children of parents legally present in the United States; the American
government unsuccessfully contested the citizenship claim by invoking an
1868 treaty with China and later agreements which restricted the power
of the United States to naturalize Chinese immigrants. Wong Kim Ark
suggested that the jurisdictional proviso should be read narrowly. The
majority was of the view that the real object of the Fourteenth
Amendment of the Constitution, in qualifying the words, "All
persons born in the United States," by the addition, "and
subject to the jurisdiction thereof," would appear to have been to
exclude, by the fewest and fittest words, (besides children of members
of the Indian tribes, standing in a peculiar relation to the National
Government, unknown to the common law,) the two classes of cases -
children born of alien enemies in hostile occupation, and children of
diplomatic representatives of a foreign State - both of which ... had
been recognized exceptions to the fundamental rule of citizenship by
birth within the country. n38

As one might infer from this passage, it is generally accepted that
the jurisdictional proviso excludes from citizenship children born to
foreign diplomats in the United States. That result seems reasonable
since diplomats enjoy special immunity from domestic law and reside in
the United States only to serve a foreign sovereign. n39

In a footnote in Plyler v. Doe, n40 the plurality read the Wong Kim
Ark rule to benefit the children of illegal as well as legal aliens. n41
That is the prevailing interpretation of the Citizenship Clause.
Professors Schuck and Smith, however, argue that the Citizenship
Clause's jurisdictional proviso excludes the native-born children of
illegal aliens from the ambit of the clause. n42 In their view, the
point of the jurisdiction requirement is to demand "a more or less
complete, direct power by government over the individual, and a
reciprocal relationship between them at the time of birth, in which the
government consented to the individual's presence and status and offered
him complete protection." n43 They argue that the Fourteenth
Amendment's "guarantee of citizenship to those born "subject
to the jurisdiction' of the United States should be read to embody
[this] conception of consensual membership, and therefore to refer only
to children of those legally admitted to permanent residence in the
American community - that is, citizens and legal resident alieens."
n44

Professors Schuck and Smith recognize that their interpretation
departs markedly from existing law. n45 Much of the argument in their
book is historical in character. As they point out, however, the
historical evidence yields no clear conclusions about the implications
of the Fourteenth Amendment for the children of illegal aliens; n46
indeed, Congress did not begin restricting immigration into the United
States until after the Fourteenth Amendment was enacted. n47 Moreover,
the reading proposed by Schuck and Smith is hardly the most textually
obvious one - the children of illegal aliens are certainly "subject
to the jurisdiction of the United States" in the sense that they
have no immunity from American law. As Schuck and Smith appear to
realize, n48 their argument rests ultimately on normative
considerations, not historical and textual ones. The next Part, which
takes up the theoretical foundations of the Fourteenth Amendment,
assesses the arguments of Schuck and Smith in detail.

Who is entitled to American citizenship? In a way, that question is
about a complex kind of property right: it is a question about who
should share in the benefits of a common social, political, and economic
enterprise. Our answers to it will likely turn upon our beliefs about
when people can justifiably claim that the success of their enterprise
is the result of effort rather than chance and when they can claim that
the relevant efforts are theirs rather than someone else's. We should
expect our inquiry into these topics to be difficult; claims about moral
responsibility and desert are always problematic.

Nevertheless, some minimal principles about citizenship seem obvious.
First, the government ought to have the power to offer citizenship to
any foreigners whom it wishes to admit to the polity; the formal consent
of the United States should be sufficient, if not necessary, to make a
person eligible for citizenship. Second, people ought to have the right
to renounce their citizenship should they wish to do so. This second
principle was controversial when the nation was founded, but not today.
n49

Yet, neither of these two principles tells us much about birthright
citizenship. Indeed, they leave open the possibility that everybody, no
matter where or to whom they were born, should be able to claim American
citizenship. An "open borders" policy of this sort may be
impractical, but it is notoriously difficult for liberal political
theory to justify restrictions upon immigration. By closing their
borders, wealthy countries impose harms upon prospective citizens who,
through no fault of their own, must live in harsh conditions while their
neighbors across the border flourish in luxury.

In this Article, I will assume that there is some satisfactory
argument that permits states to control their borders. n50 If that is
so, then any acceptable theory of birthright citizenship will have to
deny American citizenship to most of the people in the world; it will
identify a small subset of the world's people as American at birth. To
make progress toward constructing such a theory, we will have to attend
to two distinct features of the rules governing birthright citizenship.
The first is the principle - for example, consent or reliance - that
pprovides the normative justification for using a particular rule. The
second is the criterion - for example, birthplace or parentage - by
which the rule identifies citizens.

The plan of my argument is as follows. I will defend the Birthplace
Criterion on the ground that it is justified by what I will refer to as
the "Responsiveness Principle" - justified, in other words, by
the idea that the laws of a constitutional democracy ought to reflect
and serve the interests of the people who are subject to those laws.
Rather than beginning with the Responsiveness Principle, however, I will
introduce the relevant issues by taking up the best developed critique
of the Birthplace Criterion.

Professors Schuck and Smith are among the few scholars who have
attempted to justify criteria for determining birthright citizenship;
they argue for a rule that makes parentage, not birthplace, the key
criterion. Schuck and Smith distinguish between two forms of community,
the ascriptive community and the consensual community. According to
Schuck and Smith, communities founded on the Ascriptive Principle
presuppose that "one's political identity is automatically assigned
by the circumstances of one's birth." n51 The bond between citizen
and sovereign is, on this view, analogous to the bond between child and
parent. n52 As such, the Ascriptive Principle assumes that birth, not
choice, makes people citizens and that they must remain citizens (just
as they remain children of particular parents) whether they like it or
not. n53 By contrast, communities founded on the Consent Principle
presuppose that "subjectship must be based on the tacit or explicit
consent of an individual who had reached the age of rational
discretion." n54 According to Schuck and Smith, this is a two-way
street: "consent must be mutual, and members of an existing
community could properly refuse consent to the membership of those who
would disrupt their necessary homogeneity." n55 The Consent
Principle recommends "a world in which all will be linked
politically only by bonds of mutual agreement." n56

Schuck and Smith endorse the Consent Principle: "Because ...
values of personal autonomy and communal self-definition are so widely
shared in American society today, a morally credible doctrine of civic
membership must give central importance to membership based on actual,
mutual consent." n57 They maintain that "other ascriptive
legal statuses have been utterly discredited and ... consent has become
the most important, durable legitimating principle in American political
life." n58 According to Schuck and Smith, the triumph of consent
over ascription entails that citizenship should depend upon parentage
rather than birthplace. n59 Adults would not consent to becoming
citizens themselves unless their (perhaps unborn) children were
guaranteed the option of becoming citizens as well; for that reason, we
should regard citizenship for the children of citizens as a term of the
tacit social contract that constitutes the consensual community. But
citizenship for the children of illegal aliens is inconsistent with the
Consent Principle since the community has never consented to the
presence of the aliens, or their children, within the polity; for that
reason, the Birthplace Criterion is inconsistent with the consensual
interpretation of the American community.

Schuck and Smith deserve considerable praise for their pioneering
attention to the question of birthright citizenship, and they are
correct that consent's connection to personal autonomy and community
self-definition make it an attractive foundation for understanding the
nature of the American polity. Ultimately, however, I find their
conclusions puzzling, for their version of the Consent Principle ignores
the consent of the excluded. In a world without scarcity, that omission
might be excusable. We might imagine individuals banding together
voluntarily in a Lockean wilderness, free to take what they wanted so
long as they honored the Lockean proviso's instruction to leave
"enough and as good ... for others." n60 In such a world, I
could not object if you refused to admit me into your society. You could
demand that I find friends of my own and form another society elsewhere
- and the demand that I go elsewhere would not be onerous since, by
hypothesis, elsewhere would be "enough and as good" as what
you have. But ours is a world of scarcity; after Americans claim their
nation's bounty, there is not "enough and as good" left for
the rest of humanity. When we exclude others, they do have reason to
complain.

The argument offered by Schuck and Smith misperceives the
legitimating force of consent. Consent principles contribute to liberal
political theory in two ways. First, when an individual has actually
consented to some responsibility or burden, that individual's consent
will usually be sufficient to legitimate government action that enforces
the responsibility or imposes the burden. Second, when an individual has
not actually consented to government action, we will hold the government
to some other, relatively demanding standard of legitimacy, and we may
even insist that the government should be able to show the individual
would have consented if given an appropriate opportunity to do so. But
it is individual consent (and, in particular, the consent of the
burdened or excluded individual) that plays this powerful legitimating
role in American political life; liberal political theory does not
generally maintain that the government can excuse itself from
obligations it would otherwise owe to individuals simply by pointing out
that it, the government, never consented to take on those obligations.
n61 Indeed, that approach would quickly vitiate the importance of
individual consent; the government would rarely have to justify itself
by reference to the individual's consent, actual or implied, because the
government could claim instead that it had never agreed to respect the
right asserted by the individual (or, perhaps, the individual asserting
the right).

If one focuses upon the connection between individual consent and
governmental legitimacy, then the Consent Principle buttresses, rather
than undermines, the Fourteenth Amendment's birthplace rule. That rule
makes it more plausible to impute tacit consent to the children of
illegal aliens; when those children reach maturity, we can legitimate
the use of force against them by saying that it would be reasonable for
them to consent to obey the laws in exchange for the benefits that
citizenship confers. More generally, the argument of Schuck and Smith
suffers from a gaping version of the fallacy of the excluded middle. The
Ascriptive Principle they describe is decidedly unattractive because it
precludes people from renouncing their citizenship. If we were compelled
to choose between that principle and the competing principle of mutual
consent, we might well opt for mutual consent. Schuck and Smith make
much of this putative dilemma. n62 But our choices are considerably
richer; we might believe, for example, that an individual's consent is a
necessary prerequisite to imposing upon that individual the
responsibilities of citizenship, but that polities must accept as
citizens any of their residents who elect to join.

In the end, the Consent Principle is too coarse grained to help us
with the problem of birthright citizenship. Insofar as we are talking
about actual consent, the principle is too demanding to apply as a
condition of democratic legitimacy. Most people subject to American law,
including most American citizens, have not consented in any meaningful
way to their status as citizens and subjects. n63 On the other hand, if
we are talking about hypothetical consent, then all the work remains to
be done. We must decide whose consent is necessary to create the social
contract, and what terms should reasonably be regarded as having been
accepted. Neither of those questions can be answered by reference to the
idea of consent. n64

Yet, while I think that Schuck and Smith have misused the idea of
consent, we might be able to preserve the substantive intuition behind
their idea of "government consent" if we appeal to a different
idea, the idea of reliance. We might say that government ought to
respect the reasonable expectations which it engenders in those subject
to its laws; I shall refer to this claim as the "Reliance
Principle." In one important respect, obligations flowing from the
Reliance Principle are similar to those that flow from the government's
consent: the principle permits the government to disavow obligations on
the ground that it never made the affirmative commitment necessary to
create them. People commonly believe that the government has some
obligations of this sort, obligations that come into being only after
the government affirmatively encourages citizens to rely upon their
existence. For example, the Supreme Court in Casey v. Planned Parenthood
n65 predicated the existence of a constitutional right to choose whether
to have an abortion largely upon reliance concerns. n66

Reliance, of course, is a notoriously slippery idea. It has a nasty
tendency to become circular: what the Reliance Principle protects
depends upon what reliance is reasonable, and what reliance is
reasonable depends upon what the Reliance Principle protects. n67 But we
can escape these circles. We can do so by assuming that people can
reasonably rely upon government to respect only two sets of rights:
first, a rather minimal set of human rights to certain negative
liberties (e.g., the right to be free from physical torture) that
government must honor with respect to every person in the world, and,
second, other rights which exist with respect to particular governments
and particular subjects only to the extent that the government in
question has deliberately committed itself to those rights. More
specifically, nobody has a reasonable expectation of citizenship except
insofar as some government has deliberately encouraged such an
expectation. Thus, no child has a reasonable expectation of citizenship
by virtue of birth alone (certainly none has an expectation of
citizenship at birth). Certain parents may, however, have an expectation
of citizenship for their children at birth. We might say, for example,
that government pervasively and continuously creates such expectations
by encouraging parents to contribute to the commonweal for the benefit
of their posterity. By contrast, we might say, government encourages
fewer such expectations among illegal aliens, since it tells such aliens
in various ways (including deportation and criminal sanctions) that they
are unwelcome.

Of course, insofar as a government has actually encouraged illegal
aliens to enter the country or has for some time granted citizenship to
the children of illegal aliens, that government may have generated
reasonable expectations with respect to citizenship on the part of its
alien population. The Reliance Principle thus generates a raft of
empirical questions about what expectations the government of the United
States has "deliberately encouraged." It is possible that we
might accept the Reliance Principle and still conclude that illegal
aliens in the United States reasonably expect that their native-born
children will be American citizens.

Nevertheless, the Reliance Principle provides a way to explain why we
might prefer the Parentage Criterion to the Birthplace Criterion. It
also enables us to develop grounds for the nuanced refinements to the
Parentage Criterion favored by Schuck and Smith. n68 The Reliance
Principle, however, puts these arguments on very different grounds from
those advanced by Schuck and Smith. We can no longer pretend, for
example, that the Parentage Criterion can be defended by reference to
the legitimating power of individual consent - on the contrary, those
burdened by the Paarentage Criterion have not consented, and would not
consent, to its application. Nor need we choose between the Parentage
Criterion on the one hand and the silly idea that people cannot renounce
their citizenship on the other. We have instead rested the Parentage
Criterion on a potentially controversial normative principle, the
Reliance Principle. Our task now is to identify potential competitors to
that principle.

We can begin by reflecting on the special nature of the power that
government exercises over its subjects. When a government asserts
sovereign power over the people living within a particular territory, it
shapes their environment pervasively. Through their armies and police
forces, governments monopolize the power to seize and incarcerate their
subjects. These violent encounters back up more peaceful forms of
regulation: governments control (or choose not to control) taxes,
utilities, highways, courts, and schools. They define who owns what.
Government regulations limit not only what people can do but also what
they can imagine doing. n69

This is an extraordinary kind of power. To the extent that people are
subject to such power but lack control over it, they are vulnerable to
severe exploitation and oppression. For that reason, we might reasonably
insist upon a kind of reciprocity: the exercise of sovereign power over
a person is legitimate only if that person shares in the political
enterprise. More precisely, the interests of all those living in a
polity ought to be taken into account in the making, interpretation, and
application of its laws. I will call this idea the "Responsiveness
Principle."

This principle does not require that government be responsive to the
interests of every person affected by its actions. Many people living
outside the United States are affected by its policies. To name only a
few examples: the United States polices its borders; it applies some
laws outside American territory; American foreign policy is a powerful
influence upon the fate of other countries; American pollution alters
the global environment; and American corporate law creates powerful
entities capable of acting across national boundaries.

The American government may have some obligation to care for the
interests of foreigners affected by its power. For purposes of this
Article, I think it is possible to remain agnostic about the scope of
such international obligations. The Responsiveness Principle emphasizes
the special character of the relationship between a government and its
subjects. The principle insists that government must be attentive to the
interests of all who are subject to its general jurisdiction. Government
is accordingly illegitimate if it subordinates one group of subjects to
favor another.

The Responsiveness Principle generates a fairly simple argument on
behalf of one criterion for determining birthright citizenship. At a
minimum, sharing in the benefits of a political enterprise means having
the right to stay within the polity. But presence within the polity is
not sufficient to ensure that a person will benefit from government
power in the way envisioned by the Responsiveness Principle. We might
reasonably suppose that there is no effective way to guarantee that
government policy will be sensitive to a particular person's interests
unless we grant that person the right to vote. The franchise alone may
well be insufficient to implement the Responsiveness Principle; it may
be necessary to supplement the franchise with other institutional
mechanisms, such as a robust judiciary empowered to protect minority
rights. But extending the right to vote to all residents would appear to
be an essential minimum if we are to take the Responsiveness Principle
seriously. If some group - say, aliens - is denied the franchise, then
it is entirely predictable that this group will become the target of
hostile legislative majorities, and it is unlikely that
countermajoritarian institutions will long stand up to electoral
sentiment.

We might thus arrive at the following conclusion: the Responsiveness
Principle requires that every adult resident of the United States be
entitled to the right to remain in the United States and the right to
vote and, hence, by the definition stated in Part I.A.1., that every
resident of the United States be entitled to claim American citizenship.
n70 Not every resident need actually become a citizen; there is no
offense to the Responsiveness Principle if some resident elects, because
of her own interests, not to become a citizen, so long as she is free to
lay claim to citizenship if she wishes it.

The argument on behalf of this criterion has, I think, considerable
force. We should be troubled by any set of constitutional principles
that would enable a polity routinely to use police force against a
disenfranchised population within its borders, and the virtue of the
Residence Criterion is that it provides a self-executing deterrent to
any such practice. n71

Nevertheless, the Residence Criterion sweeps too broadly. It would,
for example, deny constitutional democracies the power to admit
permanent resident aliens without allowing such aliens to claim
citizenship. From the standpoint of contemporary American law, this
result is less dramatic than it might at first seem; it is now
relatively easy for permanent residents to become citizens. n72 Yet,
American policy aside, an individual's actual consent should suffice to
legitimate the use of government force against that person. When people
choose to come to the United States under the laws governing permanent
resident aliens, we have proof enough that such laws are in their
interest: they have consented to live in the United States and to do so
without the full protections of American citizenship. We might, I
suppose, worry that the laws would become less favorable to their
interests during their residency in the United States, or that they had
no real choice about coming to America because they were so badly off in
their prior home that they had to emigrate. The risk of adverse legal
change, however, may not be particularly great in practice (especially
if the resident alien is free to return to her country of origin), and
the idea of duress seems inapt with respect to resident aliens arriving
from, say, Canada or Sweden. Indeed, it would require a rather expansive
notion of duress to undermine the significance of the choice made by
economic refugees from Mexico or China. n73

Were we to reject this reasoning and instead embrace the Residence
Criterion with respect to permanently resident aliens, then we might
have to extend the Criterion to temporarily resident aliens as well. It
is easy enough, of course, to carve out an exception for tourists. They
are presumably coming to have a look at the society - to tour it -
rather than to live in it, and it seems fair enough to say that what
they see is what they get ("When in Rome ...," we might
reasonably advise them). But it is not obviously fair to apply the same
logic to temporarily resident aliens, whose relationships, expectations,
and experiences are for a period of years immersed in and developed out
of the society in which they are living as aliens. If things in the
United States go sour for any visiting resident alien, even a
temporarily resident alien, the alien, unlike a tourist, will be unable
to "cut the trip short and go home" without considerable
injury and dislocation.

The Residence Criterion may actually disserve the interests of
potential immigrants by precluding polities from granting aliens limited
residence rights that would be in the interest of both the polity and
the alien. This is a feature of any expansive approach to citizenship
rights: an inclusive rule about citizenship gives a polity incentives to
adopt an exclusive approach to immigration, since newcomers, once inside
the polity, are entitled to stay and join the community. n74 The only
permissible way to police membership is to police residence. This sort
of constraint on international mobility is an inevitable incident of
fidelity to the Responsiveness Principle, but it is also a reason to
avoid adopting a citizenship criterion that goes beyond what the
principle actually requires.

With respect to illegally resident aliens, another problem arises. We
may continue to ask, as we did above, whether the Responsiveness
Principle is rendered inapplicable by virtue of the fact that the aliens
have chosen to enter the United States. But we may also raise the
possibility of a second constraint upon the Responsiveness Principle -
namely, the idea that wrongdoers ought to be held responsible for harms
that come to them by virtue of their own wrongdoing. So we might say
that if the laws of the United States do not reflect the interests of
illegal aliens resident in the country, that is their own fault; they
are subject to those laws by virtue of their own illegal act. We might
also adopt a gentler version of this idea and say that even if illegal
aliens are not responsible for whatever harms American law does to them,
they are, nevertheless, not entitled to benefit from American law. In
other words, while American law must respect certain basic rights that
illegal aliens have by virtue of their status as human beings, those
aliens have no claim to have their interest reflected in the law in the
same way that citizens and legally resident aliens do. Wrongdoers have
no title to profit from their wrongs.

Can we modify the blunt Residence Criterion to accommodate these
objections? We might imagine a constitutional provision that reads
"All long-term residents of the United States, other than those who
chose to enter the United States unlawfully, shall be entitled to
citizenship of the United States and the state in which they
reside." This provision does not solve completely the problems
posed by the Residence Criterion. For example, it prohibits the United
States from admitting permanent resident aliens unless it is willing to
offer citizenship to them. Moreover, the provision's reference to
"long-term" residence would raise problems of interpretation,
and it seems to require the creation of procedures to assess whether a
particular person has established long-term residency. For these
reasons, the provision's effect would probably depend upon congressional
implementation. n75 Nevertheless, unless we can identify a better
alternative, the modified Residence Criterion might be the best
constitutional mechanism for ensuring compliance with the Responsiveness
Principle.

From the standpoint of the Responsiveness Principle, the unmodified
Residence Criterion appears overinclusive. In particular, it confers
citizenship upon persons who voluntarily choose to enter the United
States without benefit of citizenship; that voluntary choice is reason
enough to assume either that living under American law is in the
immigrants' interest or that the immigrants should be held responsible
for subjecting themselves to laws that do not reflect their interests.
Neither of these arguments apply, however, to children who are American
residents by virtue of their parents' choices. These children did not
decide that living in America would improve their lives, nor did they
decide to violate American law. A cardinal constitutional principle,
moreover, prohibits imputing responsibility to children for their
parents' choices. A bevy of provisions, ranging from the prohibitions
upon Titles of Nobility n76 and Corruption of Blood n77 to the Due
Process Clauses and the Equal Protection Clause, reflect the fact that
in the United States responsibility and guilt are traced to individual
action, not ancestral pedigree.

So we might conclude that the Responsiveness Principle compels us to
confer citizenship upon children who become long-term residents of a
polity by virtue of their parents' choice. That conclusion, however,
generates an administrative problem. Which children came here because of
their parents' decision, and which bear responsibility themselves (in
whole or in part) for coming to the United States? These are not easy
questions to answer. One does not have to be very old to run across the
border or to understand what is at stake in changing countries.

One baseline is, however, easy to identify. Children who are born in
the United States do not enter the country by virtue of their own
decision. So the Responsiveness Principle justifies something like the
Birthplace Criterion as a constitutional minimum: all long-term
residents of the United States who became long-term residents through no
choice of their own ought to be entitled to vote upon reaching maturity
and immune from deportation; therefore, all native-born children who
become long-term residents of the United States ought to be eligible for
citizenship.

Of course, the Constitution's version of the Birthplace Criterion is
simpler: it makes no mention of "long-term" residence. Every
baby born in the United States receives citizenship automatically - even
if the baby and its family immediately depart for foreign soil with no
intention of coming back. So the Birthplace Criterion, like the
unmodified Residence Criterion, is overinclusive. Is this
overinclusiveness a big problem? One might think not, since the affected
class, by definition, leaves the polity. The overinclusiveness of the
Birthplace Criterion does not compromise the polity's legitimate
interest in regulating the citizenship of persons who continue to reside
within its borders.

But the Birthplace Criterion, unlike the Residence Criterion, is also
underinclusive. Tots and infants brought to the United States have not
made responsible choices to leave the nation of their birth, and that
will be true of many teenagers as well. So Congress should have the
power, and the responsibility, to broaden the laws granting citizenship
to embrace other long-term residents who did not benefit from the
constitutionally inscribed Birthplace Criterion.

Of course, Congress might do a rather bad job regulating citizenship.
If we thought Congress was likely to be hostile to legally resident
aliens, we might prefer to constitutionalize the overinclusive Residence
Criterion rather than the underinclusive Birthplace Criterion. The
simple Residence Criterion, like the simple Birthplace Criterion, is
self-executing: it does not depend for its enforcement on either a
benevolent Congress or a courageous judiciary. Or, if we were confident
that either Congress or the judiciary would see to its execution, we
might think that the modified Residence Criterion would implement the
Responsiveness Principle most precisely. Our decision about which
criterion best serves the Responsiveness Principle will depend upon
practical judgments about the institutional competence of Congress and
the courts, and we might reasonably come out either way on those
judgments. The case on behalf of the modified Residence Criterion is a
strong one, and some readers will prefer it to the Birthplace Criterion.

Nevertheless, in contemporary American politics the Birthplace
Criterion's principal competition comes not from the generous Residence
Criterion but rather from more parsimonious criteria, like the Parentage
Criterion, that link citizenship to ancestry. Unlike the Residence
Criterion, the Parentage Criterion departs from the Birthplace Criterion
at the level of political principle rather than at the level of
institutional strategy. As we have seen, the Parentage Criterion, which
makes citizenship dependent upon ancestry, is best understood as resting
upon a competitor to the Responsiveness Principle, the Reliance
Principle.

The Responsiveness and Reliance Principles offer two different
standards against which to judge political action. The Responsiveness
Principle is more demanding than the Reliance Principle, and it imposes
greater restrictions upon the state's ability to deny citizenship to
residents. Is there any philosophic ground for choosing between these
two principles? I have tried, when presenting the Responsiveness
Principle, to suggest why, in light of commonly held convictions about
American politics, the principle might be thought attractive. I do not,
however, think that I have proven that the principle is a good one; nor
do I think any such demonstration is possible. Reasonable people might
find the Reliance Principle more attractive.

Nevertheless, I do think that it is possible to say more about what
is at stake in the choice between the two principles. In this section, I
try to do so. My suggestion is that the two principles correspond to two
different views of the nature of human liberty: the Reliance Principle
correlates with a negative conception of liberty, and the Responsiveness
Principle attaches to a modest version of positive liberty.

These connections arise because the Reliance and Responsiveness
Principles presuppose different baselines against which to assess human
autonomy. Under the Reliance Principle, polities need respect only the
basic human rights that all people enjoy without regard to their
membership in any political community. These rights largely, and perhaps
entirely, involve negative liberties: the right to be free from torture
and from unjust imprisonment; the right to free speech; the right to be
free from religious persecution; and so on. Beyond this point, the
Reliance Principle suggests that government has obligations only insofar
as it affirmatively takes them on. As such, the Reliance Principle
directs us to treat the benefits of political association as the earned
property of voluntary cooperation, which the association's members are
free to use in whatever way they choose. Outsiders are responsible for
their own welfare; they may form their own community, or they may
petition to join an existing community, but so long as their basic human
rights remain inviolate, they have no claim upon the fruits of
communities formed by other free persons to care for their own welfare.

The Responsiveness Principle, by contrast, requires more from
government. Every human being is entitled not only to the basic human
rights that every government must respect, but also to effective
representation within the particular government under whose jurisdiction
that human being lives. All persons subject to law are entitled to laws
that reflect their interests and to share in the benefits of political
community. We should not exaggerate the value of this right. It involves
no guarantee of a rich civic life replete with profound deliberation and
patriotic fellowship, or of equal wealth or even Rawlsian shares in
primary goods, n78 or of eligibility for high political office. Thus
far, I have suggested only that the Responsiveness Principle ensures the
right to vote and immunity from deportation. It is not clear how much
more the principle demands - although we might plausibly believe that it
also entails the right to compete on fair terms (though not necessarily
successfully) for economic and political benefits. n79 The
Responsiveness Principle would be consistent with political theories
that recommend more robust conceptions of positive liberty, but the
Principle itself requires us to accept only a relatively modest version
of positive liberty.

Still, the difference between this vision of political society and
the one sponsored by the Reliance Principle is important. The
Responsiveness Principle, unlike the Reliance Principle, does not treat
the benefits of political association as property earned by the
voluntary cooperation of free individuals. Instead, the Responsiveness
Principle regards individual responsibility as the product, rather than
the source, of political association; individuals cannot claim
responsibility for what they have (or deserve blame for what they lack)
until they establish legal authority within the territory they inhabit.
The community's discretion to administer its property is therefore
conditioned upon the community's recognition of its subjects' dependence
upon one another. Citizenship, rather than mere freedom from restraint,
is the birthright of every person.

The Responsiveness Principle is thus consistent with a view about
citizenship often articulated in the first century of this nation's
history - namely, the idea that "the most general and appropriate
definition of the term citizen is "a freeman.'" n80 Modern
readers are likely to interpret this definition as a statement that
freedom is a sufficient qualification for citizenship, and, indeed, when
Justice McLean invoked the definition in his Scott dissent, that was
exactly the conclusion he had in mind. But it is also possible, and
illuminating, to read the equation in the other direction, as affirming
that citizenship is a necessary condition of freedom. n81 That
interpretation of freedom involves a version of positive liberty: the
mere absence of unjust restraints is not sufficient to enable
individuals to take responsibility for their lives; people must first
have the benefits of membership in a political community, even if those
benefits consist of a rather thin package, such as police protection and
the opportunity to participate in economic markets.

So my suggestion is this: in choosing between the Responsiveness
Principle and the Reliance Principle, we are choosing between two
different conceptions of liberty, or, in other words, two different
views about when it is appropriate to hold people responsible for how
their lives go. Building a community around the Reliance Principle
requires that we assume people can be held responsible for how their
lives go if and only if certain basic negative liberties remain
inviolate. Building a community around the Responsiveness Principle
involves a different, inconsistent assumption - namely, that people can
be held responsible for how their lives go if and only if they are
members of a political community.

The choice between these views of human nature will turn upon moral
intuitions rather than psychological or sociological observation;
responsibility is a moral idea. Most of us subscribe to notions of human
dignity that will require us at some point, under some conditions, to
hold people responsible for how their lives go. To figure out what that
point is and what conditions must apply, we would have to explore our
intuitions about particular moral problems. So we might discuss, for
example, specific questions about property rights: the nature and extent
of the government's authority to tax and regulate; what sorts of
luxuries people should feel free to consume and enjoy; and when people
can be said to have earned something. We will, of course, differ about
these examples, and about the conceptions of human moral responsibility
that we draw from them. Nevertheless, I expect most readers of this
Article will find themselves drawn to some, more or less modest,
conception of positive liberty; after all, there are relatively few
laissez-faire capitalists around today, and even most laissez-faire
capitalists trace the legitimacy of property rights to the existence of
competitive markets. If that assumption is correct, most readers will
have a good reason for preferring the Responsiveness Principle and the
Birthplace Criterion to the Reliance Principle and the Parentage
Criterion.

The Responsiveness and Reliance Principles derive rules about
citizenship from convictions about when it is legitimate for government
to use force against individuals. That analytic strategy presupposes
that we can identify the criteria that define citizenship by reflecting
upon the state's obligations to the people over whom it exercises
authority. Many readers may, however, feel that we should approach the
issue by asking a different question - a question not about what
government must do for individuals, but rather about what sort of
community we want to have.

Indeed, the most familiar arguments in favor of restricting
citizenship focus not on individual rights or political legitimacy, but
on the features of a successful political community. So, for example,
some traditional views about citizenship analogize polities to families
and insist that citizenship should follow ancestral pedigree in order to
ensure that citizens share the proper sort of fellow feeling for one
another. n82 Other arguments maintain that no polity can establish a
desirable welfare system unless it is free to limit citizenship to the
children of citizens; otherwise, the argument continues, the system will
be bankrupted by the demands of newcomers.

Yet, if the principles that legitimate the state's use of force
against individuals entail particular conclusions about who is a
citizen, we can not adjust those conclusions to fit our preferences
about what sort of community we would like to have. Once we have
endorsed a specific principle of legitimacy, such as the Responsiveness
Principle, that principle will constrain our ability to tailor rules
about citizenship to fit our conception of the good community.

Our vision of the good community may, however, compete with
legitimacy principles, including the Responsiveness Principle, at a
prior stage in the analysis - not by altering the effects of the
Responsiveness Principle (or any other legitimacy principle), but by
causing us to question our commitment to that principle. We might
characterize the problem as follows: When selecting a constitutional
theory, including a set of rules or principles to govern citizenship, we
must bring into equilibrium a variety of convictions that we have,
including both convictions about the rights of individuals and
convictions about what a good society is. n83 The latter category will
include convictions that value certain forms of community for
instrumental reasons (e.g., the view that a community should inculcate
virtue in its citizens because otherwise the vulgar electorate will
overwhelm constitutional institutions and violate the rights of
individuals). The question we must ask is this: What convictions about
community might unhinge our commitment to the Responsiveness Principle
and so undermine the case for the Birthplace Criterion?

Start with a disturbing hypothesis. No community, we might
conjecture, can preserve its commitment to individual rights if it
cannot control its membership effectively and efficiently. This point is
most often made with respect to economic rights: a nation may struggle
to provide a basic level of well-being or opportunity to its own
citizens, but it cannot subsidize the well-being of the entire world.
But the point might be given a broader application. The willingness of
citizens to respect the rights of others might be contingent upon their
sense that their own property is secure and upon their conviction that
they (or their children) will be the beneficiaries of the political and
economic institutions they must work to maintain. If that is so, then a
nation's regard for individual liberty may depend in part upon its
ability to exclude economic refugees. Or, to take a final possibility, a
nation's ability to honor the Responsiveness Principle, or anything like
it, may depend upon the existence of commonalities of interest among its
members, and those commonalities may in turn depend upon the nation's
ability to preserve homogeneity by excluding outsiders.

Moreover, a nation as large as the United States cannot put walls
around its perimeter. No matter how much money it invests in border
control, aliens will be able to enter illegally. The prospect of
achieving birthright citizenship for their children will help to lure
illegal aliens into the United States and, once they are here, it will
make them more difficult to deport. We should therefore reject the
Birthplace Criterion. We should, however, guarantee citizenship to the
children of those who are already American citizens. By doing so, we
will reinforce the incentives for Americans to preserve their political
institutions since they will know that their children will be among the
beneficiaries of those institutions in the future. We should therefore
accept the Parentage Criterion.

Arguments of this sort are probably the best way for liberal
political theory to make sense of communitarian views about citizenship
that restrict citizenship in order to preserve cultural solidarity and
the integrity of peoples. Of course, other political traditions have
defended communitarian attitudes toward citizenship more directly, for
example, by analogizing the polity to the family. From the standpoint of
American constitutional law or liberal political theory, however, such
organic theories of the state appear inegalitarian, if not racist. n84
If we are to make cultural solidarity a respectable virtue, we must
treat it as strategically, rather than intrinsically, important. We
must, in other words, regard it as a necessary practical precondition
for the successful operation of a political enterprise dedicated to
liberal principles.

Strategic arguments of this sort depend upon a host of complicated
empirical judgments: Does the Birthplace Criterion in fact add to the
already powerful economic incentives attracting aliens to enter the
United States illegally? How costly would it be for the United States to
close its borders? To what extent does illegal immigration sap the
American people's willingness or ability to support basic rights?

Unfortunately, we have no philosophic ground for dismissing these
troubling empirical questions as irrelevant. If we find the
Responsiveness Principle attractive because of the image of liberty
attached to it, we must nevertheless consider whether that principle is
within reach of the American community. What has been said about
politics in general is certainly true of constitutionalism in
particular: it is a practical art, and it presupposes not only that
people are responsible for their actions, but also that wisely designed
institutions can secure fidelity to principle in practice. If we doubt
that any constitutional plan is capable of rendering American behavior
consistent with the Responsiveness Principle over the long haul, that
conviction might legitimately dislodge our allegiance to the
Responsiveness Principle and cause us to embrace the Reliance Principle
as an alternative premise for the constitutional system.

About the empirical questions, I can offer only two modest
observations. First, the United States may enjoy a peculiar ability to
accommodate new citizens without diluting shared cultural values. We are
a nation of immigrants. To the extent Americans share common values at
all, n85 those values reflect the opportunities - such as the
opportunity to find jobs and to escape religious and political
persecution - that brought immigrants to the United States in the past.
The people who come today often come for very similar reasons. They and
their immediate descendants may be more, not less, American than people
who trace their ancestry to the Pilgrims.

Second, empirical claims about how immigration endangers the American
political enterprise are controversial and speculative. That may be
reason enough to reject the argument from necessity. Our task is to
bring into equilibrium our views about what sorts of communities are
possible and our views about what sorts of communities are desirable.
Our views about what is possible may accordingly dislodge our attraction
to demanding moral principles, but the reverse is true as well. If the
effects of the Birthplace Criterion on civic culture are exceedingly
unclear, that is reason enough to allow intuitions about individual
rights to dictate our path unmodified by considerations of political
sociology. We must be prepared to temper constitutional principles in
light of sober judgments about the limits of human nature. But we should
not be in any hurry to make compromises not proven essential.

Here, then, is the case for the Birthplace Criterion. The criterion
is one way to implement the Responsiveness Principle, which demands that
the making, application, and interpretation of laws be responsive to the
interests of those governed by the laws. The Birthplace Criterion helps
to ensure fidelity to that principle by making it likely that those
subject to the laws will have an effective voice in determining their
content. The Residence Criterion is another means for implementing the
Responsiveness Principle. The choice between the Birthplace Criterion
and the Residence Criterion depends upon strategic considerations. I
think the choice is a close call.

Of course, the Responsiveness Principle is not the only possible
principle of legitimacy. We have given considerable attention to a
competing principle, the Reliance Principle, which makes fewer demands
upon government. I suggested that we should prefer the Responsiveness
Principle because it correlates with an attractive view of human
freedom: the principle treats human beings as responsible for their own
destiny, but it recognizes that the benefits of membership in a
political community are a necessary precondition to the existence of
this freedom. That cannot be the end of the story, however. Even if we
found the Responsiveness Principle, and the conception of human freedom
attached to it, attractive from a moral perspective, we might decline to
embrace it as the foundation for American politics if we thought the
principle so demanding that the American people would sustain severe
damage by honoring it. Whether or not the Responsiveness Principle is a
prudent basis for constitutional politics depends largely on speculative
empirical judgments. Yet, the difficulty of these empirical questions
may itself be reason enough to put them aside. The demands of necessity
may be a legitimate constitutional reason for abandoning otherwise
attractive principles; but we should be reluctant to let prudence
compromise our commitment to principle absent compelling evidence that
such a course is in fact necessary.

If indeed departures from the Fourteenth Amendment's Birthplace
Criterion would be bad from the standpoint of political justice, then
proposals to change the Constitution's birthright citizenship rule raise
interesting and relatively unexplored questions in what we might call
the theory of constitutional amendment. Suppose that Americans amended
their Constitution to depart from the Birthplace Criterion by carving
out an exception for the children of illegal aliens. Would the resulting
change be a relatively minor revision, localized to a small set of
issues about nationality? Or would the amendment have a larger ripple
effect, causing global changes to constitutional meaning?

I will argue that if a constitutional amendment makes an unjustified
exception to a moral principle expressed elsewhere in the Constitution,
then there is only one way to preclude it from having global effects on
the constitutional treatment of liberty: judges (and other
constitutional interpreters) must self-consciously treat the exception
as a mistaken judgment about the entailments of justice. If judges
refuse to take such an aggressive attitude toward the amendment, then
making exceptions to constitutional principles will either divest the
Constitution of its principled character or pollute the meaning of the
principles in all their applications. This argument is quite general and
has implications that run well beyond issues specific to citizenship: it
applies with equal force, for example, to proposed amendments that would
exempt flag-burning laws from the free speech principle, or that would
exempt school prayer from the antiestablishment principle.

These suggestions may seem too pessimistic. Unprincipled exceptions
to constitutional norms would no doubt be lamentable blemishes upon the
Constitution, but is there really any reason to think they might
metastasize and spread throughout the body of the Constitution? But
imagine for a moment the interpretive challenges facing a Supreme Court
Justice in the wake of such an amendment. How should the Justice go
about interpreting a Constitution that includes a "Children of
Illegal Aliens Amendment" or a "Flag-Burning Amendment"?
One option would be to seek a principled account of the Constitution as
a whole, one that made sense of both the Birthplace Criterion and the
specific exception for the children of illegal aliens, or, in the case
of the Flag-Burning Amendment, of both the free speech principle and the
flag-burning exception. If the Supreme Court Justice were to select this
interpretive strategy, the exception would alter the meaning of the rest
of the Constitution. We could not, for example, read the Constitution as
a whole to embrace the Responsiveness Principle because that principle
could not explain the exception governing the citizenship of the
children of illegal aliens. We would be drawn instead toward something
like the Reliance Principle. Or, if the Constitution contained a
Flag-Burning Amendment, we could not interpret the First Amendment as
predicated upon a general conviction that offensive speech should be met
with reason rather than violence, for that principle would be
inconsistent with another constitutionally inscribed principle. In this
way, the exceptions would pollute the meaning of the more general
principles they modified.

"But that's obvious," you might reply with a hint of
exasperation. "If we treat the "unprincipled exceptions' as
constitutional principles, and give them force equal to other
constitutional norms, of course the exceptions will alter the meaning of
the Constitution as a whole. We should instead treat them in exactly the
spirit they are offered: not as principles, but as brute political
decisions, reflecting the interests of those who framed them and
accordingly limited to the specific applications they had in mind. That
is the way to confine the effects of the exceptions."

So suppose that our hypothetical Supreme Court Justice takes this
tack, regarding the new amendment as a mere rule limited by the
intentions of those who legislated it into being. Unfortunately, this
decision, too, has implications for the Constitution as a whole. The
Justice has now decided that the Constitution is not a statement of
principles that regulate American political relationships; instead, it
is a record of legislated decisions that might or might not have a
principled core. n86 You might object that, in fact, the Justice has
only decided that one constitutional provision is a legislative record
rather than a statement of principle. But, once we concede that one
provision is not a statement of principle, how are we to decide whether
the others are? Not by reference to the purposes of having a
Constitution, for our attitude toward the Children of Illegal Aliens
Amendment shows that there is nothing inherent in the role of the
American Constitution which transforms its provisions into statements of
principle. Presumably the principled or unprincipled character of any
provision will depend upon the intentions of those who framed it. No
other approach is possible once we have decided that intentions can
render some provisions (at least one provision) unprincipled.

Thus, if we treat the Children of Illegal Aliens Amendment as an
unprincipled political decision, it becomes a question of historical
fact whether the Fourteenth Amendment is likewise an unprincipled
political decision. Would that change much constitutional jurisprudence?
Perhaps not; the leading positivist historical authority on the
amendment maintains, in effect, that the framers and ratifiers of the
Fourteenth Amendment intended, as a matter of historical fact, to confer
policymaking discretion upon the judiciary, n87 a conclusion that neatly
justifies most (if not all) of what has since been done in the
amendment's name. But this is not the only view of the amendment's
history. n88 And, more generally, using the intentions of the framers to
limit the meaning of an illegal aliens exception would preclude
constitutional theorists from arguing, as many of us are now inclined to
do, that it is wrong in principle (rather than because of historical
circumstance) to use original intention to limit the meaning of the
Fourteenth Amendment.

There is also another and deeper problem that renders it impossible
to cabin the force of constitutional exceptions by treating them as
brute political decisions. That approach, like any version of
originalism, makes a mistake about the Constitution's purpose. It
supposes that the point of the Constitution is to enable supermajorities
to impose their will and preferences on their successors. If that were
so, the Constitution would be an odd and lamentable political device. In
fact, the Constitution is designed to serve a very different purpose:
not to give special power to transient supermajorities, but to
discipline majorities and their representatives to act in the interests
of justice. The Constitution may, of course, fail to serve those
purposes, and so particular amendments, including the proposed
birthright citizenship amendment, might serve the interests of powerful
majorities at the expense of justice. Nevertheless, the Constitution's
purposes require that we read its provisions, even its ugly ones, as
efforts to achieve justice rather than as brute political decisions.

I have written on this topic elsewhere, n89 and I will not repeat my
arguments here. Instead, I will offer an observation designed to
underscore the sociological implausibility (rather than the normative
impossibility) that a vital originalist school of constitutional
interpretation would develop in response to an exceptional amendment.
The observation is this: there are virtually no originalists in America.
More precisely: very few constitutional interpreters, in the academy or
on the bench, consistently read the Constitution as a jumble of
political decisions, some of which happen to be just and others of which
happen to be unjust. There are, of course, interpreters who, like Robert
Bork, invoke originalism to defend a program of judicial restraint, n90
or who, like Justice Antonin Scalia, n91 invoke originalism to defend a
libertarian jurisprudence. But, so far as I can tell, Bork prefers a
Constitution that emphasizes judicial restraint, and Scalia prefers a
Constitution that authorizes the judiciary to protect certain
libertarian rights. n92 Neither is likely to call for amending the
Constitution because both in fact believe that the Constitution states a
good set (close to the best set) of principles of political justice. n93
So neither Bork nor Scalia has had to put his originalist rhetoric to
the test. Were they forced to do so, I think their originalism would
yield, precisely because there is no good reason to make the intentions
of dead people sovereign with respect to our most fundamental political
issues. n94

The effort to use originalism to cabin the effects of a Children of
Illegal Aliens Amendment to the Citizenship Clause would thus be doomed
to gradual erosion and ultimate failure. Analogies to the treatment of
illegal alien children would seep into constitutional jurisprudence and
ordinary political debate. Accusations of unjust discrimination would be
met with the question, "How is this any different from the way we
treat the children born to illegal aliens in the United States?" In
some cultures, it might be possible to rebuff this inquiry by saying,
"Well, that's just the way illegal aliens are treated, isn't it?
They're just different, aren't they?" In the rationalist precincts
of the United States, however, the analogy would demand a substantive
answer. That cultural trait is, I think, very much to our credit. But it
would inevitably, slowly but surely, push constitutional interpretation
back toward the first strategy, back toward looking for a principled
construction of the constitutional whole that would use the exception to
interpret the more general norm.

Yet, as I suggested at the beginning of this section, there is
another alternative. We need not choose between treating a noxious
amendment as a brute political decision or as an authoritative
interpretation of general principles. We can instead treat it as a
mistaken interpretation of those principles. The Constitution's purpose
may be to discipline political bodies to act in the interests of
justice, but it does not follow that constitutional institutions -
including those that have power to amend the Constitution - always
succeed; sometimes, they may carryy out their constitutional tasks
poorly. It is therefore entirely possible that judges and other
interpreters may have to recognize particular constitutional provisions
as mistakes. That does not, of course, entitle them to ignore the
provisions in question; their literal terms must be honored. But, if the
provisions are mistakes, they should not be permitted to alter the
meaning of other, better principles contained elsewhere in the
Constitution.

So it is possible to put an interpretive quarantine around a
disagreeable constitutional provision by invoking political theory
rather than originalism. The strategy outlined in the preceding
paragraph does not depend in any way upon a claim that the framers of
the noxious amendment intended it as a limited exception to a more
general principle. The strategy uses the amendment's relationship to
injustice, not its relationship to framers' intention, as a ground for
circumscribing its interpretive significance. For that reason, the
strategy would apply with equal force even if the framers of a
birthplace citizenship amendment considered it an interpretation of the
Equal Protection Clause and hoped that it would have a global impact
upon the Constitution's meaning.

American constitutional history affords at least one example of
interpretive quarantine. Chief Justice John Marshall treated the
Eleventh Amendment as a regrettable limitation upon the judicial power.
He asserted that Congress's motive for passing the amendment was
"not to maintain the sovereignty of a state from the degradation
supposed to attend a compulsory appearance" before a federal
tribunal, but merely to "quiet the apprehensions" of states
that their "debts might be prosecuted in the federal courts."
n95 The Supreme Court's recent decisions make clear that Marshall's
efforts were only partly successful. In Seminole Tribe v. Florida, n96
Chief Justice Rehnquist insisted that it would be wrong to limit the
Eleventh Amendment to its terms without connecting it to some broader
constitutional principle. n97 Rehnquist maintained that the Eleventh
Amendment articulated an implied constitutional commitment to state
sovereignty. n98

It is telling that even Rehnquist, who is an avowed positivist, n99
cannot resist the pull to treat constitutional provisions as references
to general principles. Whether or not one subscribes to Ronald Dworkin's
account of adjudication, it is hard to deny that, in practice, lawyers
and judges generally try to allow legal materials, including
constitutional provisions, to exercise a kind of "gravitational
force" that goes beyond their literal terms. n100 That tendency
threatens to frustrate, in practice, any interpretive quarantine we
might wish to erect around a noxious constitutional amendment, even if
we have a perfectly sound theoretical defense for the quarantine.

Thus, an unprincipled exception to the Birthplace Criterion might do
more than add a dissonant but localized anomaly to the Constitution; it
might instead affect the Constitution as a whole, either divesting it of
its inherently principled character or (more likely) polluting the
meaning of all its principles. It is worth asking how severe the
resulting damage might be. Perhaps we can hope that judges would
reconcile the Constitution's general norms with the new exception, but
domesticate the effects of this process. For example, Professors Schuck
and Smith have defended excepting the children of illegal aliens from
the Birthplace Criterion on the ground that such an exception is
entailed by the autonomy norms that undergird liberal constitutional
theory. n101 If we agreed with Schuck and Smith, incorporating such an
exception into the Constitution would reinforce, rather than pollute,
ambitious, rights-protecting views of the Fourteenth Amendment. So
perhaps we could advise our hypothetical Supreme Court Justice to assume
that the arguments I offered above, arguments made in opposition to
Schuck and Smith, were wrong.

Whether this strategy is tenable depends upon how plausible we find
the argument we are asked to adopt. Sometimes we might think that some
argument is, on balance, wrong, but nevertheless find ourselves able to
think of the argument sympathetically if asked to do so. But, for me,
the argument of Schuck and Smith is not of this variety. It rests, in my
view, on a confusion about the role of consent in liberal political
theory. If I were to adopt the theory in order to justify the
government's denial of citizenship to American-born children of illegal
aliens, I could not find any comprehensible stopping point that would
preclude the idea of "government consent" or "consent of
the majority" from legitimating all sorts of other invasions of
liberty and equality. So I think that, in principle, it would be
possible (and desirable) to domesticate an apparently unprincipled
amendment to the Constitution by entertaining a dubious, but arguable,
political theory. But I do not see this as a viable option in the case
of the Birthplace Criterion, at least if the "second-best"
argument we must adopt is like the one propounded by Schuck and Smith.

There is another, even more pessimistic response one might offer to
the possibility of interpretive infection. "Even if your argument
is right," somebody might say, "it doesn't matter. The
Constitution is chock full of detailed provisions that obviously do not
express any political principle, and, if one such provision would have
dramatic effects, then the addition of another - such as the Children of
Illegal Aliens Amendment - would be entirely superfluous. We are already
stuck with a terribly polluted, unprincipled Constitution."

But are we really? What obviously unprincipled provisions does the
Constitution contain? We can put aside the provisions which, like the
Fugitive Slave Clause, n102 accommodated slavery before the Civil War;
those provisions may indeed have strained the integrity of
constitutional interpretation during the antebellum period, but they
were stripped of significance by the Reconstruction Amendments. n103 Our
search for unprincipled constitutional provisions must focus upon the
Constitution as it exists today.

We might begin by considering some of the Constitution's more
detailed rules, such as the Twentieth Amendment's scheme governing
presidential succession or the Twenty-Fifth Amendment's procedures for
ascertaining whether the President is medically able to continue in
office. Surely the Constitution expresses no principle of justice when
it stipulates that the "terms of the President and Vice President
shall end at noon on the 20th day of January," n104 or that the
Vice President and the Cabinet have four days in which to contest a
President's claim of fitness to continue in office. n105 No principle
requires that the Constitution specify the 20th day of January rather
than the 21st day of January or the 4th day of March, or that the Vice
President have four days, rather than three or five, to answer a
presidential communication.

The Twentieth and Twenty-Fifth Amendments, however, differ from the
Children of Illegal Aliens Amendment or the Flag-Burning Amendment in
this crucial respect: the details of the Twentieth and Twenty-Fifth
Amendments may be unprincipled in the sense that they reflect arbitrary
choices among equally good candidate rules, but they are not
unprincipled in the deeper sense of detracting from or making exceptions
to constitutional principles of justice. On the contrary, the arbitrary
procedures specified by those amendments help to implement certain
principles of justice - such as the principle that transfers of
presidential power should be orderly and should conform to procedures
settled in advance. We might think that the Children of Illegal Aliens
Amendment could play an analogous role if we thought that the Birthplace
Criterion were merely a bookkeeping measure, designed only to provide
some clear way to identify which native-born persons were citizens and
which were not. But, at this point, the argument of this section
intersects with the argument of the preceding section. We have seen that
the Birthplace Criterion (unlike, say, the choice of January 20th as the
date upon which new Presidents take office) is not morally neutral; it
connects up with the Responsiveness Principle and with the more general
idea that citizenship is a necessary prerequisite to freedom.

We must look, then, for a constitutional provision which, unlike the
Fugitive Slave Clause, retains some vitality today and which, unlike the
Twentieth Amendment, contains details that demand an exception to some
principle of justice. I think there is at least one candidate: Article
II stipulates that "no Person except a natural born Citizen ...
shall be eligible to the Office of President." n106 The
Constitution thereby precludes foreign-born citizens from running for
President. If any of the states were to put a similar restriction upon
state or local offices, it would certainly be unconstitutional under the
Equal Protection Clause.

How should we think about the relation between Article II's nativism
and the Fourteenth Amendment's egalitarianism? We should begin by
considering how best to justify Article II's rule. Perhaps foreign birth
is relevant to the merits of a presidential candidate. Voters have
imperfect information about candidates and might reasonably predict that
foreign-born politicians will sometimes be partial to the country or
region where they were born. I do not think we would have any reason to
condemn a voter who made predictions of that sort when deciding whether
to support a foreign-born candidate.

But these predictions seem too doubtful to support an absolute,
constitutionally inscribed prohibition upon the election of foreign-born
Presidents. After all, many things (such as a criminal record) might
inspire reasonable mistrust, and the Constitution permits voters to
figure out for themselves how much weight to give such facts. Nor does
it seem that foreign-born presidential candidates are likely to be
unduly attractive to voters; on the contrary, such candidates are likely
to be the target of prejudice rather than fawning admiration.

Of course, things might have seemed different in 1787. Americans
living in a freshly minted polity might have worried that a dazzling
foreign-born politician could seduce them - or, more likely, Virginians
might worry that New Yorkers would be seduced, and vice-versa. Yet, if
this is the explanation for Article II's nativism, then isn't it exactly
the sort of rule that would corrupt the Constitution's principles: a
strategic device that no longer serves any purpose and discriminates
against one group of citizens?

If there is anything to be said against this objection, it flows from
the singularity of the presidential office. For most people, losing
their shot at the Oval Office doesn't mean much. Not many people can
hope to become President, and, for those who can, there's plenty of
other interesting work around. So, from a practical purpose, Article
II's nativism might do minimal damage. Perhaps, then, its utility in the
past would excuse the modest injustice it does in the present. One
might, in fact, be impressed that the Constitution imposes no similar
disqualification upon foreign-born citizens who aspire to serve in
Congress, the judiciary, or the Cabinet. The existence of an express
disqualification in Article II might be taken to eliminate the
possibility that naturalized citizens are subject to other, implied
disqualifications, and the Supreme Court has used Article II in exactly
that way. n107

There are, of course, other provisions of the Constitution that might
disturb us, including the Eleventh Amendment, which limits the range of
remedies available to citizens injured by unlawful conduct, including
unconstitutional conduct, on the part of the States. n108 Yet, I think
it is possible to domesticate all of these provisions in one way or
another, particularly if they predate the virulent, transformative
effects of the Fourteenth Amendment.

We are fortunate that the Constitution contains relatively few rules
that insist upon injustice. It may contain some such provisions; Article
II's nativism is one example, and it threatens to taint the principles
of the Equal Protection Clause. n109 We have not, however, been pushed
beyond some point of constitutional-no-return. New exceptions to
constitutional principle will create new problems. We have reason to
fear amendments that, like the Children of Illegal Aliens Amendment or
the Flag-Burning Amendment or the School Prayer Amendment, would carve
out exceptions to the broad guarantees of the Fourteenth Amendment. The
danger is not merely that one such amendment might erode reverence for
the Bill of Rights and hence precipitate a tide of other, similar
amendments. Instead, one such amendment might suffice to damage the
Constitution more pervasively. It is possible, in theory, to place an
interpretive quarantine around one unprincipled provision, but, in
practice, such quarantines are likely to be fragile.

The Fourteenth Amendment's Birthplace Criterion is not a
constitutional accident. It is a means for ensuring that American
government is appropriately sensitive to the interests of all the people
living within its jurisdiction. More specifically, the Birthplace
Criterion insists upon a kind of reciprocity. It rests upon the idea
that when the United States uses its sovereign power to organize
residents' lives for the common benefit, the people subject to that
power deserve a fair share of the benefits that result from the
collective enterprise in which they participate. n110 The amendment
thereby forces the legal definition of the American people to coincide
with the actual composition of American society.

FOOTNOTES:
n1. "All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside." U.S. Const. amend. XIV, 1.

n2. The exception flows from the Fourteenth Amendment's
jurisdictional proviso, which limits birthright citizenship in the
United States to persons "subject to the jurisdiction
thereof." Id. The Supreme Court has construed the exception to
apply both to the children of diplomats and to Native Americans born
under the jurisdiction of Indian law, but Congress has by statute
extended birthright citizenship to American-born Indians. For further
discussion, see infra Part I.B.

n3. The only study which takes up at length the theoretical problems
surrounding birthright citizenship in the United States is Peter H.
Schuck & Rogers M. Smith, Citizenship Without Consent (1985). Gerald
Neuman's superb new book on immigration and the Constitution takes up
birthright citizenship in chapter nine, offering pragmatic and
historical arguments in favor of the Fourteenth Amendment's rule. See
Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders,
and Fundamental Law 165-87 (1996) [hereinafter Neuman, Strangers to the
Constitution]. Schuck and Smith provoked a number of interesting book
reviews, including Joseph H. Carens, Who Belongs? Theoretical and Legal
Questions About Birthright Citizenship in the United States, 37 U.
Toronto L.J. 413, 414 (1987); David A. Martin, Membership and Consent:
Abstract or Organic?, 11 Yale J. Int'l L. 278, 279 (1985); Gerald L.
Neuman, Back to Dred Scott?, 24 San Diego L. Rev. 485, 486 (1987)
[hereinafter Neuman, Back to Dred Scott?] (arguing that "there are
serious flaws, both logical and historical, in the authors' effort to
read their theoretical conclusions into the fourteenth amendment");
David S. Schwartz, The Amorality of Consent, 74 Cal. L. Rev. 2143, 2143
(1986). A recent student note has addressed the theoretical problems
raised by birthright citizenship. See Note, The Birthright Citizenship
Amendment: A Threat to Equality, 107 Harv. L. Rev. 1026, 1028 (1994)
(arguing that Congress and states should reject proposed citizenship
amendment because it conflicts with principle of equality). Other works
have examined limited aspects of the issues considered here. See, e.g.,
Robert J. Kaczorowski, The Politics of Judicial Interpretation: The
Federal Courts, Department of Justice and Civil Rights, 1866-1876, at
151-59 (1985) (historical study discussing Supreme Court's
interpretation of Fourteenth Amendment and citizenship in 1870s);
Kenneth L. Karst, Belonging to America: Equal Citizenship and the
Constitution 51-57 (1989) (discussing the interpretive significance of
the Citizenship Clause). See generally James H. Kettner, The Development
of American Citizenship 1608-1870 (1978) (historical study focusing on
sources of American citizenship).

n7. Proponents of the referendum failed to obtain the signatures
necessary to place it on the ballot. See Patrick J. McDonnell, Follow-Up
to Prop. 187 Dies, L.A. Times, Feb. 22, 1996, at A3.

n8. See, e.g., Seeking to Deny Citizenship to Some, N.Y. Times, Aug.
11, 1993, at A10 (reporting that "Gov. Pete Wilson of California
has urged the Federal Government to deny citizenship to American-born
children of illegal immigrants").

n9. See, e.g., Thomas Alexander Aleinikoff & David A. Martin,
Immigration: Process and Policy 858 n.6 (1985) (describing progressively
tighter constitutional limitations imposed by Supreme Court on
Congress's power to expatriate). Nor, incidentally, can one assume that
only citizens are immune from deportation. For example, persons born to
noncitizen parents in the territories of American Samoa and Swains
Island are, by statute, American nationals but not American citizens.
See Immigration and Nationality Act of 1952 101(a)(29), 8 U.S.C.
1101(a)(29) (1994), discussed in Aleinikoff & Martin, supra, at 833
n.2, 945.

n10. See U.S. Const. amend. XV, 1 (abolishing use of race to qualify
voters; ratified in 1870); id. amend. XIX, 1 (abolishing use of sex to
qualify voters; ratified in 1920); id. amend. XXIV, 1 (abolishing use of
poll taxes to qualify voters; ratified in 1964); id. amend. XXVI
(abolishing use of age to qualify voters aged eighteen and older;
ratified in 1971).

n12. See Andrew L. Shapiro, Note, Challenging Criminal
Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale
L.J. 537, 538-39 (1993) (stating that today all but three states deprive
incarcerated offenders of the vote, and 14 states disenfranchise
ex-offenders for life).

n13. Some localities continue to do so. See Neuman, Strangers to the
Constitution, supra note 3, at 70 (providing examples). Neuman's book
contains an excellent general discussion of alien suffrage. See id. at
63-71, 139-49. Other relevant articles include Jamin B. Raskin, Legal
Aliens, Local Citizens: The Historical, Constitutional and Theoretical
Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391, 1394 (1993)
(stating that "the ideological traditions of both liberalism and
republicanism make available compelling arguments for the inclusion of
noncitizens as voters in local elections"), and Gerald M. Rosberg,
Aliens and Equal Protection: Why Not the Right to Vote?, 75 Mich. L.
Rev. 1092, 1093 (1977) (discussing alien suffrage of the past and
stating that "constitutional right of at least some aliens to vote
does not seem ... at all unthinkable").

n14. See, e.g., James B. Jacobs, Socio-Legal Foundations of
Civil-Military Relations 36-38 (1986) ("When the United States
armed forces have needed to conscript personnel, the net has been cast
wide enough to include aliens, even those with no intention of ever
becoming United States citizens, and even those who entered or remained
in the country in violation of immigration laws.").

The privileges and immunities ... which belong, of right, to the
citizens of all free governments ... [include p]rotection by the
government ... with the right to acquire and possess property of every
kind, and to pursue and obtain happiness and safety; subject
nevertheless to such restraints as the government may justly prescribe
for the general good of the whole.

Id. at 551-52.

n17. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (prohibiting Texas
from denying public education to illegal alien children who could have
been deported by United States). An excellent study of how the Equal
Protection Clause applies to discrimination against aliens is Linda S.
Bosniak, Membership, Equality, and the Difference that Alienage Makes,
69 N.Y.U. L. Rev. 1047 (1994).

n19. See, e.g., Note, supra note 3, at 1035-39 (arguing that denying
citizenship to children of illegal aliens would offend equality
principles). The instinct behind such equality arguments is, I think,
fundamentally sound. Later in this Article I defend the Constitution's
birthplace rule by reference to the idea that a government should be
responsive to the interests of all its subjects, which is a kind of
equality principle. See discussion infra Part II.B. For the reasons
indicated in the text, the question is a subtle one.

n20. Gerald Neuman's arguments on behalf of the birthplace rule are
vulnerable to the question posed in the text. See Neuman, Strangers to
the Constitution, supra note 3, at 183. Neuman maintains that
"withdrawal of birthright citizenship would aggravate [a] caste
division" within American society and produce "tragedies"
akin to those resulting from the German treatment of Turkish
guestworkers. Id. at 184-85. Yet, it is not obvious that the harms
caused to native-born children by the denial of citizenship are worse
than the harms caused to foreign-born children by exclusive immigration
policies. If the difference between the two grows out of harms to the
structure of American society, rather than out of individual injuries,
then we must address a further question about how to balance those harms
against the damage done if the birthplace citizenship rule encourages
illegal immigration - which, Neuman admits, it might do. See idd. at
182-83. Neuman suggests that these incentives are relatively
unimportant, and I tend to agree with him; nevertheless, that empirical
speculation seems an uncertain foundation upon which to rest the
constitutional principle that both Neuman and I defend.

n21. In their book, Professors Schuck and Smith recommended
eliminating birthright citizenship for the children of illegal aliens,
but they also argued for an "expan[sion of] statutory
citizenship" and an "increase [in] the number of aliens
admitted under legal quotas." Schuck & Smith, supra note 3, at
138-39. Their generous spirit is nicely illustrated by Peter H. Schuck,
Alien Rumination, 105 Yale L.J. 1963 (1996) (reviewing Peter Brimelow,
Alien Nation: Common Sense About America's Immigration Disaster (1995))
(criticizing proposals to curtail legal immigration radically). In
December 1995, Schuck testified before the Subcommittee of the House
Judiciary Committee and argued against denying birthright citizenship to
the children of illegal aliens. Schuck made his argument on policy
grounds, not constitutional grounds. Statement of Peter H. Schuck Before
the Subcomm. on Immigration and Claims and the Subcomm. on the
Constitution, Comm. on the Judiciary, U.S. House of Representatives
(Dec. 13, 1995) (on file with the New York University Law Review).

n22. 60 U.S. (19 How.) 393 (1857).

n23. Counting votes in Scott is not easy. For a brief primer on the
constitutional and jurisprudential issues posed by Scott, see generally
Christopher L. Eisgruber, Dred Again: Originalism's Forgotten Past, 10
Const. Commentary 37 (1993). For a superb historical study, see
generally Don E. Fehrenbacher, The Dred Scott Case: Its Significance in
American Law and Politics (1978).

n25. See, e.g., id. at 410, 426 (drawing on documents, laws, and
attitudes from framers' era to interpret "people" and
"citizen" in Constitution). For discussion of the opinion's
originalist underpinnings, see Eisgruber, supra note 23, at 46-48.

n28. For example, Justice Field said that Curtis's opinion was
"generally accepted by the profession of the country as ...
containing the soundest views of constitutional law" pertaining to
citizenship prior to the Fourteenth Amendment. The Slaughter-House
Cases, 83 U.S. (16 Wall.) 36, 94 (1872) (Field, J., dissenting).

n29. To make matters more complicated, the Constitution refers to
both national citizenship and state citizenship without providing many
clues about the relation between the two. See, e.g., U.S. Const. amend.
XIV, 1 (stating that persons "are citizens of the United States and
of the State wherein they reside").

n30. For a discussion, see Kettner, supra note 3, at 287-88, 311-24
(discussing conflict between Northern and Southern states over status of
free blacks). As Kettner notes, the recognition of tribal sovereignty
complicated application of this principle to American Indians. See id.
at 288-300; see also the extensive discussion in United States v. Wong
Kim Ark, 169 U.S. 649, 658-66 (1898) (surveying early American case
law).

n36. See Immigration and Nationality Act of 1952 301(b), 8 U.S.C.
1401(b) (1994) (conferring citizenship upon every "person born in
the United States to a member of an Indian, Eskimo, Aleutian, or other
aboriginal tribe: Provided, That the granting of citizenship under this
subsection shall not in any manner impair or otherwise affect the right
of such person to tribal or other property"). Congress first
explicitly granted citizenship to all native-born Indians in 1940. See
Aleinikoff & Martin, supra note 9, at 850.

n41. See id. at 211 n.10 (stating that "no plausible distinction
with respect to Fourteenth Amendment "jurisdiction' can be drawn
between" legal and illegal aliens).

n42. See Schuck & Smith, supra note 3, at 116.

n43. Id. at 86.

n44. Id. at 116.

n45. See, e.g., id. at 119 (urging Supreme Court to respect interests
of potential citizens who have relied on more generous interpretation of
Citizenship Clause that now prevails).

n46. See, e.g., id. at 129-30. For an impressive argument that
history is inconsistent with the interpretation offered by Schuck and
Smith, see Neuman, Back to Dred Scott?, supra note 3, at 489-97.

n47. See Schuck & Smith, supra note 3, at 92-93.

n48. See id. at 129-35.

n49. See Kettner, supra note 3, at 268-84 (discussing controversies
over right to renounce citizenship in early American history); Schuck
& Smith, supra note 3, at 86-89 (describing contemporary consensus
that all U.S. citizens have right to renounce citizenship).

n50. I do not regard it as at all obvious that this assumption is
true.

n51. Schuck & Smith, supra note 3, at 12-13.

n52. See id. at 16.

n53. As Schuck and Smith explain:

No right to disobey or to expatriate oneself could arise. Indeed,
expatriation and denationalization - termination of the allegiance
between a natural-born subject and his sovereign by either the
individual or the government - were considered contrary to natural law
and therefore impossible for either party. A birthright subject was
perpetually bound to his birthright sovereign regardless of his
parentage, his own desires, or even those of his king.

Id. at 17-18.

n54. Id. at 25.

n55. Id. at 28.

n56. Id. at 36.

n57. Id.

n58. Id. at 90.

n59. See id. at 116.

n60. John Locke, Second Treatise on Civil Government, in The Second
Treatise of Civil Government and A Letter Concerning Toleration 3, 15 (J.W.
Gough ed., Basil Blackwell 1946) (1690).

n61. Joseph Carens makes the same point in his excellent review of
Schuck and Smith's book. See Carens, supra note 3, at 416
(distinguishing between "mutual consent" and "individual
consent").

n63. Aliens who freely chose to immigrate to the United States are an
exception; hence the argument, infra text accompanying note 72, that
governments may legitimately deny citizenship to permanently resident
immigrants.

n64. Again, Carens makes the same point. See Carens, supra note 3, at
421-22, 424-25 (arguing that "consent" does not justify
conclusions Schuck and Smith offer). I am in general skeptical about
using consent, actual or hypothetical, to answer fundamental questions
about the American Constitution. See Christopher L. Eisgruber, The
Fourteenth Amendment's Constitution, 69 S. Cal. L. Rev. 47, 57-62 (1995)
(examining problems with treating Constitution as either actual contract
among persons or as hypothetical contract among states).

n67. On the other hand, the Consent Principle favored by Schuck and
Smith also has a tendency to become circular. Professor Neuman points
out that no matter what birthright citizenship rule the United States
chooses to incorporate into its Constitution, it consents to that rule
by the very act of constitutionalizing it. Therefore, it makes no sense
to criticize potential rules as more or less consensual - at least if
one is worried, as Schuck and Smith are, only about the consent of the
included. See Neuman, Strangers to the Constitution, supra note 3, at
169.

n68. For example, Schuck and Smith would apply their preferred
Parentage Criterion only prospectively, and they would continue to grant
citizenship to the native-born children of permanent resident aliens.
See Schuck & Smith, supra note 3, at 118.

n69. Hence the venerable idea that distinct political regimes tend to
produce distinct characters in their citizens. For discussion, see,
e.g., Martin Diamond, Ethics and Politics: The American Way, in The
Moral Foundations of the American Republic 39, 41-42, 63 (Robert Horwitz
ed., 3d ed. 1986).

n70. In a sense, the Residence Criterion effectively does away with
birthright citizenship: one becomes entitled to citizenship by
residence, and it does not matter who one's parents were or where one
was born.

n71. For a thoughtful argument on behalf of the Residence Criterion,
see Michael Walzer, Spheres of Justice: A Defense of Pluralism and
Equality 52-69 (1983); see also Carens, supra note 3, at 428-29.

n72. Legally resident aliens become eligible for citizenship after
five years of residence in the United States, see Aleinikoff &
Martin, supra note 9, at 859-61; through the 1970s, more than 97% of
petitions for citizenship were approved, see id. at 868-69, and the
"overwhelming majority of the denials were based on two reasons:
lack of prosecution, or withdrawal of the petition by the
petitioner," id. at 869.

n73. If we accept the Responsiveness Principle, however, immigrants
escaping human rights violations may deserve a claim not only to
sanctuary but to citizenship in the United States.

n74. Michael Walzer recognizes this point and takes it on board; he
says that "neighborhoods can be open only if countries are at least
potentially closed." Walzer, supra note 71, at 38.

n75. One could redress this problem by incorporating a time period
directly into the constitutional provision: for example, "All
persons, other than those who chose to enter the United States
unlawfully, who reside in the United States continuously for a period of
at least five years shall be entitled to citizenship of the United
States and the state in which they reside."

n77. See id. art. III, 3, cl. 2 (prohibiting conviction of treason
from resulting in Corruption of Blood or in forfeiture beyond life of
person convicted).

n78. See John Rawls, A Theory of Justice 90-95 (1971) (explaining
concept of "primary goods" as basis of expectations).

n79. It is hard to see how the laws could be sensitive to the
interests of persons while denying them access to such competition.
Thus, the Responsiveness Principle supports Judith Shklar's
interpretation of American citizenship as structured around the twin
pillars of voting and earning. See generally Judith N. Shklar, American
Citizenship: The Quest for Inclusion (1991).

n81. This interpretation of Justice McLean's maxim finds support in
the political theory of his fellow Republican, Abraham Lincoln. Harry
Jaffa argues persuasively that Lincoln reformulated the Declaration of
Independence's concept of equality, interpreting it as a goal toward
which government should aim rather than as a fact about human nature
that government must respect. See Harry V. Jaffa, Crisis of the House
Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates
318-21 (1959).

n82. A venerable statement of the model is Jean Bodin, The Six Bookes
of a Commonweale (Kenneth Douglas McRae ed., Harvard Univ. Press 1962)
(Richard Knolles trans., 1606). For discussion of the theory's modern
form in German law, see generally Rogers Brubaker, Citizenship and
Nationhood in France and Germany (1992).

n83. My formulation of this problem was inspired by arguments
discussed in a rather different setting by Ronald Dworkin, Liam Murphy,
and Larry Sager, all of whom will probably wish to disclaim any
responsibility for the use to which I have put their insights.

n84. See Richard H. Fallon, Jr., What Is Republicanism and Is It
Worth Reviving?, 102 Harv. L. Rev. 1695, 1733-34 (1989) (noting that
classical republicanism may work best in homogeneous societies). It is
no accident that Chief Justice Taney's opinion in Scott analogized the
American polity to a family in order to justify a racist reading of the
Constitution. See Scott, 60 U.S. (19 How.) at 406-07, 417-18, 422.

n86. Any interpreter must begin her reflections on the Constitution
by considering its political function: we cannot begin to figure out
what the Constitution means unless we have some view about the purposes
it serves. See Eisgruber, Justice and the Text, supra note 85, at 4-5. I
have argued elsewhere that the Constitution's purpose generates an
inherent connection, not dependent upon the intention of its framers,
between constitutional meaning and political justice. See Christopher L.
Eisgruber, The Living Hand of the Past: History and Constitutional
Justice, 65 Fordham L. Rev. (forthcoming Mar. 1997).

n87. See generally William E. Nelson, The Fourteenth Amendment (1988)
(asserting that framers of Fourteenth Amendment failed to give it
precise content, leaving that task to courts).

n93. See sources cited supra note 92. Likewise, Henry Monaghan
criticizes "perfectionist commentators" who believe that the
Constitution incorporates all of the rights most cherished by liberal
democratic theory. See Henry P. Monaghan, Our Perfect Constitution, 56
N.Y.U. L. Rev. 353, 396 (1981). But, in Monaghan's view, this fact is no
cause for lament. On the contrary, Monaghan believes that wise
constitutionalists leave the government flexible enough to accommodate
changing views about moral issues. See id. at 361-63. So Monaghan, like
those whom he criticizes, believes the Constitution is, if not perfect,
then at least very good - he simply embraces a different view about what
makes a constitution good.

n94. Cf. Scalia, supra note 91, at 864 (confessing that, if
confronted by case in which originalism would require him to do serious
injustice, he might abandon originalism).

n95. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 406-07 (1821).

n96. 116 S. Ct. 1114 (1996).

n97. See id. at 1122 (noting that ""we have understood the
Eleventh Amendment to stand not so much for what it says, but for the
presupposition ... which it confirms[,]'... that each State is a
sovereign entity in our federal system" (citations omitted)).

n98. See id. at 1127 (stating that "the Eleventh Amendment stood
for the constitutional principle that state sovereign immunity limited
the federal courts' jurisdiction").

n99. See, e.g., William H. Rehnquist, Observation: The Notion of a
Living Constitution, 54 Tex. L. Rev. 693, 704-05 (1976) (arguing that
laws "take on a form of moral goodness because they have been
enacted into positive law," not because of "any independent
virtue they may have").

n107. See Schneider v. Rusk, 377 U.S. 163, 165 (1963) (citing Article
II's eligibility requirements to support proposition that naturalized
citizens are equal to their native-born counterparts in all other
respects).

n108. See U.S. Const. amend. XI (excluding from federal jurisdiction
suits against state brought by citizens of another state or of foreign
state). This amendment has been interpreted to exclude suits against a
state by its own citizens. See Hans v. Louisiana, 134 U.S. 1 (1890). But
see Ex parte Young, 209 U.S. 123 (1908) (permitting suits against state
officials).

n110. For legal immigrants, whose entrance to the United States may
have been conditional upon their willingness to accept a limited share
of society's benefits, a "fair share" may be subject to
special restrictions. Illegal aliens, who have violated the laws of the
collective enterprise, may forfeit any claim to share in the common
good. Neither the consent exception nor the wrongdoing exception can be
sensibly applied to the native-born children of illegal aliens, however.